The continuing confusion over the actual legal status of the informal system and the lack of clarity on the current draft law has created a situation in which local officials are often unsure of the actual legality of resolutions made by many of these bodies, resulting in a system with a great deal of ambiguity. his ambiguity vis-a-vis the formal system both helps and hinders dispute resolution. In many cases it has created a nebulous space in which local officials and community leaders can broker local compromises and define their relationships in a flexible, if ad hoc, manner. But in other instances the lack of certainty over their authority has actually increased conflict between them, making it less likely that disputes will be resolved.
Pluralism, Not Dualism
While the actual legal framework for the resolution of disputes outside of the court system and the role of such mechanisms within the court system remain poorly defined, the state continues to play an important role in informal dispute resolution. Moreover, there is not a simple dichotomy in which disputants may choose either the formal justice system or informal mechanisms.39 In addition to a wide array of local shuras, local notables, and religious leaders, disputants may take cases to the courts, to any one of numerous other government officials, or some combination of these options. his creates a range of hybrid pathways for dispute resolution. It is common, for example, for courts to refer both civil and criminal cases to informal bodies to resolve all of the case or aspects of it, after which the court certifies the decision. In 2007-08, for example, 150 of 377 civil disputes registered in the Jalalabad court system were ultimately resolved by informal jirgas.40
Another way in which the systems intersect is that government officials may sit on shuras in their own communities or in the communities where they hold government postings, making them simultaneously members of the formal and informal systems. While research generally shows the predominance of informal mechanisms in creating longer lasting resolutions, these mechanisms exist with a constant awareness of government officials and state institutions. Various political variables and the personalities of those involved may ultimately
Table 2. Cases Resolved through Various Dispute Forums
do much to shape these interactions. For example, see table 2 for numbers that hint at some of the local distrust of the district governor in Deh Rawud as opposed to Gereshk.41
The current formal sector in Afghanistan appears no more capable of addressing human rights issues than the informal sector.
Beyond the judges and prosecutors who form the heart of the formal judicial system, numerous other government officials take part in local dispute resolution.he